Wednesday, January 31, 2018

A Dallas man, William Rayford, was executed on January 30, 2018 for the 1999 slaying of
his ex-girlfriend while he already was on parole for killing his estranged
wife, reported The Associated Press.

Rayford, 64, became the nation’s second inmate put
to death this year, both in Texas, when he received lethal injection for
beating, stabbing and strangling 44-year-old Carol Lynn Thomas Hall. Her body
was found about 300 feet (91 meters) inside a drainage pipe behind her home in
South Dallas’ Oak Cliff area. Hall’s 11-year-old son, Benjamin, also was
stabbed in the attack but survived. He testified against Rayford.

Asked by the warden at the Texas Department of Criminal
Justice Huntsville Unit if he had a final statement, Rayford apologized
repeatedly to his victim’s four children who watched through a window a few
feet from him.

“Carol didn’t deserve what I done,” he said. “Please try to
find it in your heart to forgive me. I am sorry. It has bothered me for a long
time what I have done.”

He said he had made mistakes and asked God to forgive him.

“If this gives you closure and makes you feel better, I have
no problem with this taking place,” Rayford said.

As the lethal dose of pentobarbital began taking effect, he
lifted his head from the pillow on the death chamber gurney, repeated that he
was sorry and then said he was “going home.”

He began to snore, and within seconds all movement stopped.
He was pronounced dead at 8:48 p.m., 13 minutes after the powerful sedative was
injected.

Among the four people who witnessed the execution was the
victim’s son who was stabbed in the attack. He and three siblings showed no
emotion as they watched Rayford die. They declined interviews afterward.

The punishment was delayed while the U.S. Supreme Court
considered — and later rejected — last-day appeals from Rayford’s lawyers. The
attorneys argued his death sentence was tainted because his trial lawyer in
2000 improperly introduced the subject of race as a factor in prison violence
while questioning a prison expert during the punishment phase. Nadia Wood, a
Dallas-based federal public defender, told the high court that in bringing it
up, the trial lawyer implied “that people like Mr. Rayford — a black man — are
the cause of the violence.”

An assistant Texas attorney general, Jefferson Clendenin,
disputed the argument, telling the justices the witness never testified as an
expert in rates of violence because he wasn’t qualified to do so and that none
of the witness’ trial testimony “even implied that African-Americans are more
likely than others to be violent or that Rayford himself was a future danger.”

Tuesday, January 30, 2018

Florida’s Stand Your Ground law was meant to make sure that
average residents could defend themselves without fear of arrest or trial.

Now, police officers accused of using excessive force are
trying to claim the law’s protection, reported the New York Times.

The law has a contentious history and was opposed by
prosecutors as soon as it was passed in 2005. It eliminates a person’s duty to
retreat from a dangerous situation and frees them to use deadly force “if he or
she reasonably believes it is necessary” to prevent harm or death. It shields
people from both criminal trials and civil lawsuits.

Last week, lawyers notified the court that Nouman K. Raja, a
former Palm Beach Gardens police officer, intended to seek Stand Your Ground
protection in the 2015
killing of Corey Jones, a 31-year-old musician and housing inspector.
Mr. Jones was waiting on the side of the road in a broken-down car when Mr.
Raja, in plain clothes and an unmarked vehicle, approached him in the middle of
the night without identifying himself.

Mr. Jones had a new gun which he bought because he
frequently carried cash on his way home from gigs. The officer claimed Mr.
Jones pointed it at him, but prosecutors say Mr. Raja fired at Mr. Jones six
times even as he fled, hitting him three times.

The encounter was recorded by the roadside assistance
service Mr. Jones had called for help.

Mr. Raja, a rookie in the department, was fired. His Stand
Your Ground hearing has been scheduled for March, when prosecutors must present
a mini-trial before the judge, who will decide whether to dismiss the charges.

The hearing gives defendants a chance to beat the charges
before trial. Prosecutors have argued that officers already have immunity for
lawful shootings under a different law that specifically addresses law
enforcement.

In a court motion, the Florida attorney general’s office
said police officers should not be allowed to get protection from both laws.
Victims’ families have also objected.

“I think it’s very sad that police officers are taking
advantage of that law, especially when they are in the wrong,” said Mr. Jones’s
father, Clinton Jones Sr. “I think it’s a disgrace to the police department.”

Benjamin L. Crump, the family’s lawyer, said the case “risks
a terrible precedent.”

“To extend it to police officers on the street gives them a
license to kill just by saying they felt fear — no standards, no objective
check and balance,” Mr. Crump said.

Mr. Raja’s lawyer, Richard Lubin, declined to comment while
the case is pending.

He was not the first to try the defense. A judge granted the
Stand Your Ground claim of Mr. Schwartzreich’s client, Broward Sheriff’s Deputy
Peter Peraza, in the 2013 killing of Jermaine McBean. Mr. McBean, 33, was
walking down the street, wearing earbuds and with an air rifle propped on his
shoulders, when Mr. Peraza ordered him from behind to drop it.

The officer claimed that Mr. McBean pointed the air rifle at
him, although witnesses disputed his account. After a hearing, a judge ruled in
Mr. Peraza’s favor and dismissed the case.

The Fourth District Court of Appeal upheld the ruling, but
because the decision was in direct conflict with another appeals court ruling,
the case is headed to the Florida Supreme Court.

In 2012, the Second District Court of Appeal rejected an
officer’s use of the law to avoid trial for stomping on a 63-year-old man. Juan
Caamano, a former police officer in Haines City, south of Orlando, instead went
to trial and was acquitted.

Last summer, two Miami police officers successfully invoked
Stand Your Ground immunity when they were sued for damages in the beating of a
man in a wheelchair.

Even Mr. Caamano’s lawyer said police officers should not be
allowed to invoke Stand Your Ground.

Local judges often have ties to law enforcement or are
reluctant to rule against police officers for political reasons, the lawyer,
Lawrence H. Collins, said.

“What it does in the case of police officers is it puts a
decision of whether an action was justified in the hands of a judge rather than
a jury,” he said. “The law needs to be changed. You don’t want that decision in
the hands of a judge.”

Call it the war on G-men. As they’ve run
interference for Trump by undermining the special counsel investigation being
led by Robert Mueller, some Republicans on Capitol Hill have unleashed broad
attacks that suggest the nation’s premier law enforcement agency is tainted by
corruption and malfeasance.

They’ve latched onto a text showing a FBI official
joking about a “secret
society,” and suggested there was a “deep
state” plot to “subvert the will of the American people.” They’ve
compared the actions of U.S. law enforcement officers to the KGB, and said they
have a secret
memo ― written by Republican staffers ― proving “shocking,”
“sickening,” “jaw-dropping” law enforcement conduct that was “worse than
Watergate.”

When the Department of Justice said a tech issue
meant that some text messages between two FBI employees who were lovers were
missing, some Republicans smelled a coverup and saw a conspiracy afoot. “This
is like the dog ate my homework, the excuse they give,” Rep. Jim Jordan of
Ohio said on Fox News. “This is something that just should
not take place.”

Trump called the the missing texts “one of the
biggest stories in a long time.” And then the texts were recovered.

Sunday, January 28, 2018

Vernon Madison, one of the longest serving inmates
on Alabama's Death Row, was scheduled to be executed at 6 p.m. Thursday,
but 30 minutes before the scheduled execution the U.S. Supreme Court
issued a temporary stay, reported AL.com. The stay was later granted, and Madison's execution
called off.

Madison, 67, has been on death row for over 30 years
after being convicted in April 1985 of killing Mobile police Cpl. Julius
Schulte. He was set to die by lethal injection at Holman Correctional
Facility in Atmore Thursday night, but escaped execution for the second time
via an U.S. Supreme Court order issuing a stay.

Attorney General Steve Marshall issued a statement
Friday morning in response to the U.S. Supreme Court's issuance of the stay.

"After prior rulings that Vernon Madison is
competent to face execution for the murder of a Mobile police officer 32 years
ago - a cold blooded crime for which there is no doubt he is guilty - it is
disappointing that justice is again delayed for the victim's family,"
Marshall said. "The State opposes Madison's delay tactics and will
continue to pursue the execution of his death sentence."

The U.S. Supreme Court about 30 minutes prior to the
execution issued a temporary stay, then was extended at 8:10 p.m., causing the
execution to be called off for Thursday night.

The Supreme Court's order states the stay is in
place until the justices decide whether they will grant Madison's writ of
certiorari - request for a review of the case. Justices Clarence Thomas, Samuel
Alito, and Neil Gorsuch would deny the application for stay, the order
said.

If a majority on the U.S. Supreme Court refuses to
review the case, then the stay will automatically be lifted and the Attorney
General can then request a new execution date for Madison from the state
supreme court.

In the certiorari request by Madison's attorneys at
the Equal Justice Initiative (EJI), they say Madison is not competent to be executed.

Saturday, January 27, 2018

Last week, the Chicago Tribune wrote about the
tragic, and unsolved, murders of at least 75 women over the last 17 years on
the South and West sides of Chicago. According to the Tribune, the women were
either strangled or smothered “and their bodies dumped in vacant buildings,
alleys, garbage cans, snow banks.”

Arrests have been made in less than one in three of
those murders. According to the Tribune, there is no evidence suggesting a
serial killer is at work. The absence of a serial killer means 51 murderers
have evaded the police and the consequences of their crimes.

Fifty one killers loose on the streets, of any city,
is frightening. However, the killers loose on Chicago’s South and West sides
only scratches the surface.

Turn the clock back one year — January 2017 — the
same newspaper wrote that “More than 80 percent of murders committed in 2016
were not solved.” There were 763 murders in Chicago in 2016. With a clearance
rate of 19.9 percent, Chicago’s streets have 612 murderers walking free from
2016 alone.

In the criminal justice system, clearance rate is used
to measure the rate at which law enforcement agencies solve crimes. In the
FBI’s Uniform Crime Reporting (UCR) Program, law enforcement agencies can
clear, or “close,” offenses in one of two ways: By arrest or by exceptional
means.

Clearance by exceptional means could include the
death of a suspect or the reluctance of the victim or witnesses to cooperate in
an investigation.

Declining clearance rates is not just a Chicago
problem. If you’re murdered in America, there’s a one in three chance that the
police won’t identify your killer.

Clearance rates have declined precipitously over the
last 50 years. In 1965, clearance rates for murder hovered above 90 percent. In
2016, the last year of available data, the clearance rate nationwide was 55
percent.

Although homicide has declined dramatically in this
country from a high water-mark of 24,530 in 1993 to 16,891 in 2016, solving
murders has become more difficult. Even with modern investigative techniques,
more homicides than ever remain unsolved.

The scope of the problem is enormous. If you take
the total number of murders over the last 10 years and divide that number by
the average clearance rate, the result is approximately 54,000 unsolved
murders.

More than half of America’s major police departments
are struggling to solve homicides at the same level of success they enjoyed
just a decade ago, according to a study of federal crime records by the
nonprofit Murder Accountability Project (MAP).

The study focused on the nation’s 160 police
departments that investigate at least 10 homicides a year and annually report
crime data to the FBI’s UCR. Fifty four percent of those departments reported
less success in solving murders committed during the 10-year period, 2006-2015,
than in the preceding decade.

The problem is about more than police work. The MAP
study found most departments with declining murder clearance rates also
experienced an increase in homicides. These departments often are located in
areas with declining tax bases or facing other kinds of fiscal challenges.

The “no snitching” culture in many minority
communities has been fueled by worsening relationships between the police and
the public. The reluctance of witnesses to come forward or cooperate with
investigators has had an impact on solving murders.

How can the police earn the trust of the public if
the most heinous crimes remain unsolved and the perpetrators of those crimes
remain free? The mistrust leads to less cooperation, which leads to more
unsolved murders which leads to ever-widening mistrust — a lethal cycle that
sucks the life out of neighborhoods and whole communities.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, January 26, 2018

Pennsylvania Governor Tom Wolf announced the number of inmates in
the Pennsylvania state prison system dropped for the fourth consecutive
calendar year, according to new statistics released by the Department of
Corrections, reported the Clearfield Progress.

In 2017, the total DOC inmate population dropped from 49,301
to 48,438, a decrease of 863 inmates or 1.8 percent over 2016.

“The 2017 calendar year reduction represents the single
largest year-over-year decrease of inmate population on record,” Wolf said. “I
am pleased that our efforts and initiatives are making a measurable difference
in improving our prison population numbers, while reducing crime, supporting
those reentering our communities, and lowering costs.”

After decades of growth that more than doubled the number of
prisons in Pennsylvania, the inmate population has declined by 6.4 percent, or
3,319 inmates, since June 2012, allowing for the 2017 closure of SCI Pittsburgh
and accompanying significant cost savings.

“This latest reduction in the inmate population, combined with
the crime rate decline, indicates that a broad range of bi-partisan criminal
justice initiatives being undertaken across Pennsylvania are working for our
citizens,” said Corrections Secretary John Wetzel. “We believe further
reductions in the inmate population, lower agency costs and decreases in the
crime rate, are possible moving forward as part of the consolidation with the
Board of Probation and Parole and the second round of the Justice Reinvestment
Initiative.”

Wetzel said legislation proposed under the initiative would
also expand victims’ rights to require police officers to provide victim
services information at the scene of a crime, require prosecutors to notify the
Victim Advocate on behalf of personal injury crime victims and increase
compensation for crime victims.

In the decade before the first Justice Reinvestment
Initiative began in 2012, the DOC population was increasing by an average of
1,262 inmates per year. The Justice Reinvestment Initiative is aimed at
reducing the prison population through criminal justice reform and directing
the savings to help counties enhance public safety which also further sustains
prison population reductions.

Thursday, January 25, 2018

For the second week in a row, someone was charged with
punching a police officer and his horse at Lincoln Financial Field on the day
of a Philadelphia Eagles playoff game, reported the Los Angeles Times.

On Sunday, the incident took place while fans were
tailgating outside the Linc about three hours before the Eagles hosted the
Minnesota Vikings in the NFC championship game, according to WTXF-Fox 29 in Philadelphia.

A mounted Pennsylvania State Police corporal attempted to
disperse a crowd in Parking Lot M, but a man identified as Andrew Tornetta
became verbally combative and refused to leave, police said. According to
police, the officer grabbed Tornetta by the clothing in an attempt to maintain
control, and the man punched the horse twice in the right front shoulder and
then hit the officer just below his eye.

Tornetta then slipped out of his sweatshirt and attempted to
flee into the crowd but was caught, according to police. His charges include
aggravated assault, simple assault and recklessly endangering another person.

Last week, Eagles fan Taylor Hendricks was ejected from the
Eagles' divisional round game against the Atlanta Falcons for being intoxicated
and not having a ticket, according to WTXF. On his way out of the Linc,
Hendricks reportedly approached a mounted officer and repeatedly punched the
horse in the face and neck before hitting the officer in the legs.

Neither the officer nor the horse was injured, according to Philadelphia magazine.

Hendricks is charged with aggravated assault, taunting a
police animal, simple assault and trespassing, according to court records.

Wednesday, January 24, 2018

More inmates died in Florida prisons last year than in any
other year on record, leaving the state scrambling to identify causes and find
solutions, reported the Miami Herald.

The tally, 428 inmate deaths in 2017, was released by the Florida Department of Corrections and showed a 20 percent
increase over previous years.

The inmates who died were, on average, younger than in
previous years, and only two died as a result of a state imposed execution.

"A 20 percent spike in prison deaths is of course
alarming, as is the fact that it’s younger inmates that are dying, rather than
people who have been in there for decades," said Howard Simon, executive
director of the Florida American Civil Liberties Union. "But I don’t want
to jump to any conclusions. Many of these are under investigations. And there’s
multiple causes."

Those who died in 2017 averaged 56.3 years of age. Since
2012, the average age of death in the prison system has swung between 57.1 and
58.2 years old.

The Florida prison system has long been considered one of
the most dangerous by almost any metric, including inmate-on-inmate violence,
use-of-force by staff and problems with delivery of health care. But there is
no easy answer as to why the number of deaths spiked so drastically from one
year to the next. The Department of Corrections has begun an internal
investigation. The causes of death are nearly all pending further
investigation.

Tuesday, January 23, 2018

When a district attorney dies in a smaller county in
Pennsylvania, typically the office’s first assistant is sworn in as the
county’s top law enforcement official.

That process, however, did not happen after Susquehanna’s
district attorney passed away last month, and now two attorneys are
claiming to be the county’s top prosecutor—with one having taken the oath of
office and the other having been appointed by the county’s only commissioned
judge, reports The Legal Intelligencer.

The two lawyers have also taken their fight to the state
Supreme Court. Although the case presents an issue of apparent first
impression, it will be up to the justices to determine whether they will decide
the case on the merits, or send it back to a trial court for further
review.

The dispute began after Susquehanna District Attorney Robert
Klein died on Dec. 27 at the age of 53. According to court documents,
Klein had been suffering from cancer for several months, and he told the
prosecutor’s office about the condition in either late May or early June.

Following Klein’s death, William Urbanski, who had been
first assistant under Klein, sent a letter to Susquehanna County Court of
Common Pleas Judge Jason Legg telling him that he had become the district
attorney of the county pursuant to 16 P.S. Section 1404(b), which says that “in
a county of the fourth through eighth class, the first assistant district
attorney shall become district attorney” if any vacancy occurs. That portion
goes on to say, “If the first assistant district attorney is unwilling or
unable to serve, the judges of the court of common pleas shall fill the vacancy
by the appointment of a competent person.”

However, Legg declined to swear Urbanski in to the
position.

According to court papers, Legg instead determined that
Urbanski was not a resident of Susquehanna County at the time of
Klein’s death. Applying Section 1401(a), which says “the district attorney
shall be a resident of the county” and “shall have resided in the county for
which he is elected or appointed for one year next preceding his election or
appointment,” Legg held that Urbanski was therefore “unable to serve”
as district attorney.

Despite Legg’s holding, Urbanski had Luzerne County
Magisterial District Judge James J. Haggerty, a “lifelong friend,” administer
the oath of office on Jan. 1, an affidavit from Urbanski said. The
ceremony took place at Urbanski’s family farm in Rice Township, Luzerne County,
with members of Klein’s family in attendance.

In the meantime, however, Legg reached out to the
Susquehanna Bar Association looking for applicants to fill what he deemed
to be the vacant district attorney position, and on Jan. 5, Legg appointed
attorney Marion O’Malley as the county’s district attorney.

Three days after O’Malley was appointed, Urbanski filed an
emergency action with the Supreme Court, arguing that he had not been given a
proper hearing on the issue and that the justices should determine him to be
the county’s top law enforcement officer.

Monday, January 22, 2018

Texas carried out the nation's first execution of 2018
on January 18, 2018, giving lethal injection to a man who became known as
Houston's "Tourniquet Killer" because of his signature
murder technique on four female victims, reported CBS News.

Anthony Allen Shore was put to death for one of those
slayings, the 1992 killing of a 21-year-old woman whose body was dumped in the
drive-thru of a Houston Dairy Queen.

In his final statement, Shore, 55, was apologetic and his
voice cracked with emotion.

"No amount of words or apology could ever undo what
I've done," Shore said while strapped to the death chamber gurney. "I
wish I could undo the past, but it is what it is."

As the lethal dose of pentobarbital began, Shore said the
drug burned. "Oooh-ee! I can feel that," he said before slipping into
unconsciousness.

He was pronounced dead 13 minutes later at 6:28 p.m. CST.

"Anthony Allen Shore's reign of terror is officially
over," Andy Kahan, the city of Houston crime victims' advocate, said,
speaking for the families of Shore's victims. "There's a reason we have
the death penalty in the state of Texas and Anthony Shore is on the top of the
list. This has been a long, arduous journey that has taken over 20 years for
victims' families."

Shore's lawyers argued in appeals he suffered brain damage
early in life that went undiscovered by his trial attorneys and affected
Shore's decision to disregard their advice when he told his trial judge he
wanted the death penalty. A federal appeals court last year turned down his
appeal, the U.S. Supreme Court refused to review his case and the six-member
Texas Board of Pardons and Paroles unanimously rejected a clemency petition.

Shore's attorneys said his appeals were exhausted. They
filed no last-minute attempts to try to halt his execution.

In 1998, Shore received eight years' probation and became a
registered sex offender for sexually assaulting two relatives. Five years
later, Shore was arrested for the 1992 slaying of Maria del Carmen Estrada
after a tiny particle recovered from under her fingernail was matched to his
DNA.

"I didn't set out to kill her," he told police in
a taped interview played at his 2004 trial. "That was not my intent. But
it got out of hand."

Estrada was walking to work around 6:30 a.m. on April 16,
1992, when he she accepted a ride from him. The former tow truck driver, phone
company repairman and part-time musician blamed his actions on "voices in
my head that I was going to have her, regardless, to possess her in some
way."

He also confessed to killing three others, a 9-year-old and
two teenagers. All four of his victims were Hispanic and at least three had
been raped. Jurors also heard from three women who testified he raped them.

Harris County District Attorney Kim Ogg, who as an assistant
prosecutor worked the then-unsolved Estrada case, said crime scene photos
showed Estrada was tortured and had suffered as a stick was used to tighten a
cord around her neck.

"I know this case, I know his work and the death
penalty is appropriate," she said. "A jury in this case gave Shore
death. ... I think he's reached the end of the road and now it's up to
government to complete the job."
To read more CLICK HERE

Senior White House adviser Jared Kushner recently hosted
a listening session for his father-in-law, President Donald Trump, on prison
reform, according to Newsweek. Marc Mauer of The Sentencing Project wrote, since taking office, Attorney General Jeff Sessions has promoted an
aggressive agenda of reversing the policies of the Obama years, including
reviving contracting with private prisons, urging federal prosecutors to seek
harsher prison terms and opposing sentencing reform. Moreover, Sessions hasn’t
missed an opportunity to stoke fears about rising violent crime rates during
2015 and 2016, and falsely attributes these spikes to immigrants.

Kushner’s initiative, while beneficial, offers little in the
way of substantial reform. To date, he has largely focused on prison re-entry
programming, providing services and supports for people coming home from
prison. The re-entry concept was initiated under President Bill Clinton,
received legislative support from President George W. Bush and has been
embraced by corrections leaders around the nation. But important as it is, it’s
only an after-the-fact response to crime and harsh sentencing.

Alternatively, a more significant step toward reducing
excessive punishments and restoring fairness has been the introduction of the
Sentencing Reform and Corrections Act, sponsored by conservative Judiciary
Chairman Senator Chuck Grassley (R-IA) and leading liberal Senator Dick Durbin
(D-IL). The legislation would outlaw many of the mandatory drug sentencing
provisions that have imposed lengthy prison terms in cases of drug kingpins and
lower level offenses, alike. It would also restore a greater measure of
discretion to federal judges so that they can consider the individual
circumstances of each case rather than being forced to apply a
one-size-fits-all structure that does a disservice to all. Further, the act
would scale back some of the provisions of the notorious “three strikes and
you’re out” statutes that have imposed sentences of life without parole even
for a third drug offense.

Despite bipartisan support for sentencing reform in
Congress, the legislation has been held up in the Senate by a handful of
Republicans. After Senator Tom Cotton and then-Senator Jeff Sessions objected
to the bill in 2016, Senate Majority Leader Mitch McConnell did not schedule
the bill for a floor vote despite its passage by the Senate Judiciary
Committee.

So where does that leave us today? More re-entry
programming, the kind Kushner is suggesting, would be welcome, but a sole focus
on that initiative reveals two grievous flaws.

First, the programming provisions being discussed on Capitol
Hill contain no funding allocation. Apparently, there is hope that faith-based
organizations will emerge to provide these services pro bono. Religious groups
can play a valuable role in ministering to people in prison, but it is
irresponsible to expect that volunteers will be capable of delivering
professional services, such as substance abuse treatment, that are so urgently
needed among the prison population.

Second, dropping the sentencing provisions of the
Grassley-Durbin legislation from the Trump administration’s reform
conversations guarantees that there will be no significant inroads made into
reversing mass incarceration. Thousands of federal drug defendants will be
sentenced to decades of incarceration and resources will be squandered that
could more effectively be directed to prevention and treatment initiatives.

Shamefully, the U.S. will continue to be a world leader in
locking up its citizens, a sad commentary on the goal of achieving liberty and
justice.
To read more CLICK HERE

Saturday, January 20, 2018

The United States Supreme Court will soon decide if driving
a rental vehicle without being on the rental agreement means the driver
surrenders his right to be free from unreasonable search and seizures. The high
Court is being asked to decide if the police need a warrant to search a rental
car.

In 2014, the Pennsylvania State Police pulled over Terrence
Byrd. He was driving a vehicle rented by his fiancée, who also happened to be
the mother of his children. The police said Byrd was nervous during the stop
and told officers he had some marijuana in the car. The police searched the car
without Byrd’s consent.

They told him they didn’t need his consent because the
rental agreement did not list Byrd as the renter or as an authorized driver.

The police found heroin in the trunk. Byrd was ultimately
sentenced to 10 years in prison.

Byrd’s case made its way to the U.S. Supreme Court when the
court of appeals noted that there was a difference of opinion among the various
circuit courts concerning the propriety of a warrantless search of a rental
vehicle.

Byrd’s written argument submitted to the Supreme Court
started like this, “When a person’s fiancée hands him the keys to her car and
tells him he may use it, he reasonably expects privacy in the car. She has
given him both possession and control over the car, and he reasonably believes
that he can exclude strangers and the government from intruding upon his
private personal and family possessions stored in the car.”

The Fourth Amendment protects individuals from warrantless
searches of homes, businesses, vehicles and persons where there is a reasonable
expectation of privacy. The Fourth Amendment is one of the first 10 amendments
to the United States Constitution known as the Bill of Rights. In early
America, the Fourth Amendment applied only to federal prosecutions. The
Fourteenth Amendment, ratified in 1868, made the Bill of Rights applicable to
state prosecutions as well.

Attorneys for Byrd argued that his expectation of privacy
did not derive from the rental car agreement. Byrd urged the court to consider
that he had actual physical control of the vehicle.

If Byrd were carrying a duffle bag over his shoulder, would
it matter if his fiancée purchased the bag? Could the police go into the bag if
Byrd couldn’t produce a receipt?

The government argued in its brief “The consent of
petitioner’s girlfriend could not validly authorize petitioner to drive the car
because the rental agreement did not grant her the power to let others drive
the vehicle. In fact, the contract expressly advised that ‘permitting an
unauthorized driver to operate the vehicle is a violation of the rental
agreement.’”

Justice Sonia Sotomayor suggested in response to the
government’s argument, “If we rule that someone has no expectation of privacy
even when the renter has given it to them, then what we’re authorizing is the
police to stop every rental car and search every rental car, without probable
cause, that might be on the road.”

According to Adam Liptak of the New York Times, the
government argued that criminals often use cars rented by others to transport
drugs, victims of human trafficking and unauthorized immigrants.

Liptak acknowledged that allowing the police to search
rental cars whenever they pull over an unlisted driver would yield evidence of
crimes. Byrd’s lawyers wrote, “But what is expedient for law enforcement is not
the test.”

The test is probable cause. Do the police believe the
vehicle is involved in some illegality and is there is a threat the vehicle
will be moved before the contraband be can be confiscated? This country’s
Constitution, and courts, do not permit random searches based on a “hunch.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, January 19, 2018

The U.S. Supreme Court recently heard arguments in McCoy
v. Louisiana a capital case, which asks the court whether it is
constitutional for defense counsel to concede an accused's guilt over the
accused's express objection, reported Jurist. The case arose after
McCoy's defense attorney pleaded guilty, despite McCoy's express objection,
because he believed it was his ethical duty to save his client's life and
conceding guilt would do so. The attorney's strategy failed, however, and McCoy
was sentenced to death.

McCoy argues that
he has a constitutional right to make certain decisions in his defense, and
pleading guilty or not guilt is one of those. Louisiana agrees that a defendant
has the right to make some basic decisions, but that conceding guilt to a jury
is not one of them.

During the argument, Justice Kagan reframed the issue,
stating:

[T]his lawyer was in a terrible position because this lawyer
wants to defeat the death penalty. And he has a client who says: That's not my
goal here. But the question is when that happens, does the lawyer have to step
back and say: You know what? That's not his goal. His goal is to avoid
admitting that he killed his family members.

The court's opinion will likely depend on its interpretation
of the Sixth Amendment.

Thursday, January 18, 2018

Pennsylvania Gov. Tom Wolf declared the heroin and
opioid epidemic a statewide disaster emergency on Tuesday but in “the process
enacted a statute by the PA General Assembly years ago,” said Joshua Prince, a
lawyer at The Prince Law Offices in Pennsylvania, explained on The Rich
Zeoli Show on 1210AM WPHT.

“It is automatic when a governor issues a proclamation
of emergency, this section of the Law 6107 applies, where it prohibits anyone
from carrying a firearm on any public streets or any public property during
that emergency,” he said.

On whether Gov. Wolf could choose not to invoke the statute,
Prince said,”This section of the code (6107) does not have
any discretionary aspect to it; it automatically applies as soon as there
is any proclamation of emergency.

“I don’t believe Gov. Wolf knew that by issuing
this proclamation it would trigger this prohibition. He has been surprised
by the amount of people calling his office who are frustrated and concerned
about this issue. It seems as though that they were caught completely off guard
by it.”

Wednesday, January 17, 2018

Kerry Kennedy the daughter of former Sen. Robert F. Kennedy, who was shot to death in June 1968, two months after Rev. Martin Luther King's assassination wrote in the Cleveland Plain Dealer this week:

The front page of the April 5, 1968 Plain Dealer after
Martin Luther King Jr. was assassinated reports Sen. Robert F. Kennedy would
eulogize King in Cleveland.

Robert F. Kennedy minced no words in Cleveland: "There
is another kind of violence, slower but just as deadly, destructive as the shot
or the bomb in the night," my father said. "This is the violence of
institutions - indifference, inaction, and decay. This is the violence that
afflicts the poor, that poisons relations between men because their skin has
different colors. This is a slow destruction of a child by hunger, and schools
without books, and homes without heat in the winter. This is the breaking of a
man's spirit by denying him the chance to stand as a father and as a man
amongst other men."

My father's "Mindless
Menace of Violence" speech in Cleveland laid responsibility for
reform at the feet of all Americans. It called not only for a rethinking of
state policy, but also for a moral "cleansing" to remove the
"sickness" of racism and prejudice "from our souls."

Nearly 50 years later, Robert F. Kennedy's words remain a
powerful summation of what ails our society.
According to the Bureau of Justice Statistics, more
than 187,000 people were incarcerated in state and federal
prisons when King visited Ohio in 1968. Fifty years later, more than 2 million
people are incarcerated on any given day in the United States.
Disproportionately those of color, including children, they sit in jail cells
awaiting trial - many simply because they can't afford bail or a simple fine.

Tuesday, January 16, 2018

Here is an excerpt from New York Gov. Andrew Cuomo's op-ed in the New York Times:

The fundamental tenet of criminal law in the United States
is that all those accused of a crime in this country are presumed innocent
unless proved guilty beyond a reasonable doubt. That fundamental principle is
not limited to American law; it was also part of Roman law, Islamic law and
English common law. This bedrock safeguard has been ratified on more than one
occasion by the Supreme Court and is codified in the United Nations Universal
Declaration of Human Rights.

And yet, despite the centrality of this protection, in New
York City jails, where 86 percent of the population is black or Hispanic, 75
percent of inmates have not been convicted of a crime. They are simply
incarcerated awaiting trial.

How is this possible? How is it that we have a system in
which punishment is imposed before one is found guilty?

It begins with the inadequacies of our bail system.

Most people who are arrested in New York are released on
their own recognizance. But others, including many who are charged with
nonviolent crimes, are required to obtain bail to avoid pretrial detention. The
problem is that many people lack the cash to make bail.

s a result, our jails are filled with people who have yet to
be proved guilty of any crime, and the system today has devolved into one with
two tiers: If you can make bail, you are set free; if you are too poor to make
bail, you are punished.

This would be shameful enough if the interval between the
bail proceeding and trial were a short one. Instead, the length of time between
arraignment and trial can stretch into months and even years. The Sixth Amendment of
the Constitution guarantees defendants a “speedy” trial, but no one can look at
the operations of our court system and conclude that speediness is anyone’s
priority.

Take the tragic case of Kalief Browder, a 16-year-old
African-American with no criminal record who was arrested in 2010 for allegedly
stealing a backpack and spent three years at Rikers Island waiting for his day
in court. Ultimately charges were dismissed, but the damage was done; his abuse
while jailed was so traumatic that Mr. Browder determined taking his life was
the only way to stop his continuing pain.

One such incident is intolerable, and it opened our eyes to
the urgent need for real reform because we simply cannot risk another. A
criminal justice system that ignores its cornerstone principle to the detriment
of anyone — whether they are white, black, Latino, rich or poor — delegitimizes
it. And we cannot allow this to persist.

This year, I am sending a bill to the State Legislature that
will close the gap between what our criminal justice system says and what it
does.

The bill will reform our bail system so that anyone facing
misdemeanor or nonviolent felony charges should be released without bail. Those
who pose a current danger to a person or persons or pose a risk of flight can
still be held in detention, with due process, but no longer will people go to
jail for the crime of being poor.

The new U.S. attorney for Massachusetts appeared to indicate that legal marijuana sellers in the state could face federal
prosecution, reported the ABA Journal.

Andrew E. Lelling’s statement follows Attorney General Jeff
Sessions’ recent
decision giving U.S. attorneys discretion on whether they want to
enforce federal laws that prohibit the use and sales of cannabis. Massachusetts
voters approved the legalization of marijuana in 2016, and stores were expected
to open in July, the Boston
Globe reports.

“I cannot … provide assurances that certain categories of
participants in the state-level marijuana trade will be immune from federal
prosecution,” Lelling tells the Globe.

A former assistant U.S. attorney who handled complex fraud
cases, the Trump administration appointed him as the U.S. attorney for
Massachusetts in 2017, and he received U.S. Senate confirmation Dec. 15,
according to MassLive.com.

Last week, Lelling said in a statement that
his office would “aggressively investigate and prosecute bulk cultivation and
trafficking cases, as well as individuals who use the federal banking system
illegally.” He did not specify if he would prosecute marijuana businesses or
those who consume the drug, MassLive.com reported.

“I must proceed on a case-by-case basis, assessing each
matter according to those principles and deciding whether to use limited
federal resources to pursue it,” Lelling said last week.

In a second statement on Monday,
Lelling noted “this is a straightforward rule of law issue” and that Congress
has “unambiguously made it a federal crime to cultivate, distribute and/or
possess marijuana.”

Municipalities in the state have been preparing for
recreational marijuana sales and the federal government’s recent position is
confusing, Geoff Beckwith, executive director of the Massachusetts Municipal
Association, told the Globe.

“This is a knuckleball late in the process,” he said. “It’s
a disruptive intrusion by the federal government into the activities of state
and local governments, who have been working on this structure and implementing
the will of the voters.”

Lelling’s stance seems more aggressive than that of other
U.S. attorneys, the Globe noted, and came about shortly after sponsors of the
2016 marijuana legislation asked what his response would be to Sessions’
decision. In Colorado, where marijuana is also legal for recreational use, U.S.
Attorney Bob Troyer issued a statement on
Jan. 4 saying he didn’t plan to change his office’s approach to marijuana
prosecution decisions.

Sunday, January 14, 2018

Under New York's decade-old Sex Offender Management and
Treatment Act, convicted sex offenders can be kept in secure psychiatric
hospitals indefinitely after their prison terms expire, reported the Albany Times-Union. If an offender is found
to have a mental abnormality that makes the person likely to commit another sex
crime, the state can — after a court hearing — order the offender committed as
a patient in a secure psychiatric hospital. (There are currently no women in
civil confinement.)

The system has drawn a number of legal challenges in recent
years, and some of those who are committed have said they aren't receiving the
kind of treatment that was contemplated when the law was passed 10 years ago.
They characterize their confinements as little more than extensions of prison
terms, albeit in a hospital rather than a correctional facility.

In a series of interviews with the Times Union in recent
months, numerous men who are being held at the Central New York Psychiatric
Center after having served prison terms for crimes ranging from sexual abuse to
rape said they are receiving little meaningful treatment. They said that sexual
activity often goes unpunished, that there is access to pornography, and that
mental health sessions often devolve into debates about who controls the
television.

"These so-called social workers who run these groups
are not psychologists," said Enrique Torres, who was first convicted at
age 14 when he raped a 4-year-old girl who his mother was babysitting.
"Real psychologists are not participating in these programs."

Torres said that he believes his abuse of children stemmed
from the fact he was repeatedly sexually abused as a child.

"I thought this was a normal thing," Torres said.
"I'm not saying that treatment doesn't work — I'm saying that this place
doesn't provide treatment."

Torres' case is unique. After he served a prison term for a
second conviction for sexual abuse, he was confined to a mental health
facility. A state Supreme Court justice reviewed his case and ruled the state's
confinement program was unconstitutional. But the case, State of New York v.
Enrique T., was overturned by an appeals court that rejected the argument that
the "statute is unconstitutional as applied to him and those sex offenders
who may ultimately be approved for civil management under strict and intensive
supervision and treatment, a less restrictive alternative to confinement."

But Torres and others being held indefinitely said they are
effectively locked up in a prison-like setting. Torres said that he was living
in the community following his second release from prison without re-offending
and was undergoing voluntary mental health counseling that he said was working.

"I understand nobody wants to be the advocate for the
sex offenders," he said. "It's a really disgusting situation we
brought upon ourselves. But 17 years ago I committed that offense. I've been in
the community. I didn't commit another sex offense."

In general, the process for confining an offender to a
mental facility begins with a state-funded psychiatrist or psychologist
examining the person for a few hours. If the psychologist determines the person
has a mental abnormality that makes them likely to re-offend, the state
Attorney General's office files court proceedings to have them confined.

The Justice Department attorney recently interviewed another
offender who is confined with Torres at the state's Marcy psychiatric hospital,
where multiple patients have filed civil rights lawsuits trying to unravel the
confinement program.

"They called me up and we spoke for about two and a
half hours," Charlie Gerena said of a conversation he had with the Justice
Department official, Julie Abbate, in November.

Gerena said overcrowding in the facility was one of the
topics they discussed.

"We have people in side rooms," he said,
explaining that offenders are in rooms that used to be reserved as
"time-out" spaces where people could get away from others and have
some quiet time by themselves.

Saturday, January 13, 2018

Pennsylvania residents can now legally use marijuana for
medical purposes. Some 10,000 Pennsylvanians are now literally card-carrying
marijuana users. If you have the card you can access marijuana for any one of
17 different serious health conditions.

That is great news for people with cancer, epilepsy or
Crohn’s disease to name a few. The news is not so good for gun buyers or owners
who need cannabis treatment.

As the Pittsburgh Post-Gazette put it, ”(S)ome sick people
will have to make a difficult decision: Is taking the medicine worth
surrendering what gun-owning advocates see as an enshrined constitutional
right?”

Under federal law, all forms of marijuana use remains a
crime. The Drug Enforcement Administration considers marijuana a Schedule 1
drug, in the same category with cocaine, heroin and LSD. Marijuana and the
other illicit drugs remain illegal on a federal level because there are “no
currently accepted medical use and a high potential for abuse.”

As a result, marijuana use eliminates an individual from
buying or owning a gun. The names of those card-carrying marijuana users will
have their name in a Pennsylvania database that will be accessible to gun
dealers.

If a name comes up as a marijuana user, the individual is
disqualified from purchasing a firearm. In fact, the U.S Justice Department
keeps records of gun purchases and the application asks specific questions
about marijuana use, with the following warning:

“The use or possession of marijuana remains unlawful under
federal law regardless of whether it has been legalized or decriminalized for
medicinal or recreational purposes in the state where you reside.”

Evidently the federal government doesn’t realize that 29
states and Washington, D.C. have legalized some form of marijuana use.

What’s worse — in a state with a long history of vigorously
defending the Second Amendment — Ryan Tarkowski, a spokesman for the
Pennsylvania State Police told the Post-Gazette “It’s unlawful to keep
possession of firearms obtained prior to registering.”

The police can confiscate a registered marijuana user’s gun.

The feds don’t seem to be backing off. Last week, Attorney
General Jeff Sessions announced that previous Obama-era policies of
non-interference with states that have legalized marijuana are “unnecessary.”

In a memo, the attorney general called marijuana “dangerous”
and activity surrounding the drug to be a “serious crime.”

He has encouraged U.S. Attorneys to vigorously pursue
illegal drug cases including those that involve the use and distribution of
marijuana.

The problem is reverberating nationwide. The Maryland State
Police, who oversee gun ownership in the state, ask prospective gun buyers if
they have a medical marijuana card. According to the Baltimore Sun, buyers must
allow the state health department to disclose whether they have applied for a
card.

The Honolulu Police Department’s plan to confiscate guns
from medical marijuana users has been put on hold. The police sent a series of
letters to medical marijuana card holders, demanding they surrender all
firearms. According to Hawaii News Now, the policy has been met with strong
opposition and will be reevaluated by state police officials.

The National Rifle Association has not taken a position on
the issue, yet. With nearly 60 percent of states authorizing marijuana for
medicinal or recreational purposes the gun issue is not going away. This has
the ability to pit long-time “law and order” pols against NRA supporters who
are also reliable benefactors.

Must one be forced to choose between medicine and a gun?
Pennsylvania Governor Tom Wolfe has made it clear—not in his state.

“The federal government needs to do the right thing here,”
Wolfe told Public Radio’s WESA-FM in Pittsburgh. “We’re not going to take their
[medical marijuana users] guns away.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, January 12, 2018

The tragic death
of Kate Steinle during the summer of 2015 created a firestorm over
illegal immigration. Candidate—and now President—Donald Trump blamed Steinle’s
death on San Francisco’s sanctuary city policy, which prohibits city law
enforcement officers from helping federal immigration officials carry out
detentions of undocumented immigrants.

The rhetoric was amplified last month when José Ines Garcia
Zarate, was
acquitted in state court of Steinle’s murder. He was, however
convicted of being a felon in possession of a firearm.

The federal charges come at an interesting time. The state
convictions and new federal charges raise concerns of violating the Double
Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

In Gamble
v. United States, the U.S. Supreme Court is being asked to consider whether
the Double Jeopardy Clause—which prohibits any person from being prosecuted for
the same offense more than once—bars a federal prosecution for a criminal
offense when the defendant has already been prosecuted for the same offense in
state court.

This is the very issue facing Garcia Zarate.

The Double Jeopardy Clause clearly established that the
Founding Fathers viewed the prohibition of successive prosecutions as a
fundamental right of individual liberty and an important safeguard against
government harassment and overreach.

Double Jeopardy is not unique to American jurisprudence.
According to Sir William Blackstone’s Commentaries on
the Laws of England, it was a “universal maxim of the common law of
England, that no man is to be brought into jeopardy more than once of the same
offence.”

The Fifth Amendment provides
“. . . nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb[.]”

In 2015, Terance Martez Gamble was pulled over by an Alabama
police officer for a broken taillight. During the stop, the officer discovered
both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been
convicted of second-degree felony robbery seven years earlier, was barred from
owning a firearm.

Gamble was prosecuted for illegal possession of a firearm,
and he served one year in state prison. Subsequently, the federal government
also charged Gamble with illegal possession of a firearm for the same incident.
Gamble asked the U.S. District Court to dismiss his federal indictment for
violating double jeopardy.

The District Court ruled that the dual-sovereignty exception
to the Double Jeopardy Clause, which permits a second prosecution for the same
offense by a different “sovereign,” permitted the federal case to proceed.

Under the dual-sovereignty doctrine, so long as two offenses
are defined by different jurisdictions, they cannot constitute the “same
offense.” This is true even if the offenses contain identical elements and even
if the underlying statutes contain identical language, wrote
Adam J. Adler in The Yale Law Journal.

As a result, the Double Jeopardy Clause does not apply in a
multi-sovereign context. The federal government can charge a felon with
possessing a firearm even after a state government has already convicted the
felon of possessing the same firearm, at the same time and arrested by the same
law enforcement agency.

Thus the state and federal government can both prosecute the
same offender for the exact same offense.

Gamble appealed to the U.S. Court of Appeals for the
Eleventh Circuit, and that court affirmed the lower court’s decision. Gamble,
who is now serving time in federal prison, asked the Supreme Court to
reconsider its past decisions allowing successive prosecutions for the same
offense by different sovereigns.

An Amicus
Brief filed by the Cato Institute points to the expansion of federal
criminal statutes as a reason for the Supreme Court to revisit the
dual-sovereignty exception to the Double Jeopardy Clause.

Traditionally, the federal government left most criminal
matters to be handled by the states; there were relatively few offenses
punishable by both state and federal statutes. But in recent decades, there has
been “a stunning expansion of federal criminal jurisdiction into a field
traditionally policed by state and local laws,” wrote Justice
Clarence Thomas in 1992.

The Supreme Court created the dual-sovereignty exception a
decade before it held that the Double Jeopardy Clause fully applied to the
states through the Fourteenth Amendment. With over 4,450 crimes making up the
federal criminal code, and an
equally voluminous code of federal regulations, there is no reason why a
state prosecution should not “count” when a defendant objects to being
prosecuted federally for the same offense a second time.

Justice Hugo Black argued in a 1959
dissent, “If double punishment is what is feared, it hurts no less for two
‘Sovereigns’ to inflict it than for one.”

The High Court should take Black’s advice and put an end to
the dual-sovereignty exception as it relates to federal prosecutions. The
exception is ill-suited for an era where Congress continues to thrust federal
criminal jurisdiction into areas not contemplated even a few decades ago.

Editor’s Note: Gamble is being considered for
review on a Writ of Certiorari. While the Court has not agreed to hear the case
yet, a decision to accept the case should be made in next 60-90 days.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C., of New Castle, PA. His weekly column on crime and
punishment is syndicated by GateHouse Media and his book The Executioner’s
Toll, 2010 was released by McFarland Publishing. You can reach him
at www.mattmangino.com and
follow him on Twitter @MatthewTMangino. Readers’ comments are welcome.

The US Supreme
Court heard two Fourth
Amendment involving the search of motor vehicles, reported Jurist..
In the first case, Byrd
v. United States, the court heard arguments
as to whether a driver has a reasonable expectation of privacy in a rental car
when that individual is not listed as an authorized driver in the rental
agreement. Terrence Byrd was pulled over by a state trooper for driving in the
left lane. The trooper and his partner then searched Byrd's car, which revealed
a flak jacket and 49 bricks of heroin. The officers argued that they did not
need Byrd's consent because he was not listed as a driver on the rental
contract, and therefore, had no reasonable expectation of privacy under the
Fourth Amendment. Byrd argues that the officers did not have probable cause to
search the truck, so the evidence should be suppressed.

The Fourth Amendment protects citizens from warrantless
searches in areas in which individuals have a reasonable
expectation of privacy. Byrd argues that the list of
authorized drivers on a rental agreement is intended only for rental companies
to collect fees and to shift liability to the driver for accidents; the list
has nothing to do with the reasonable expectations of privacy. Further, he
argues that he had a property interest in the car because he was using the car
with the renter's permission, which should protect him from a threat of a
warrantless search.

During oral argument, Chief Justice John Roberts and Justice
Samuel Alito seemed to be the most willing to side with the government, while
Justice Sonia Sotomayor seemed to be sympathetic to Byrd's argument. She
stated, "If we rule that ... someone has no expectation of privacy even
when the renter has given it to them, then what we're authorizing is the police
to stop every rental car and search every rental car, without probable cause,
that might be on the road."

In the second case, Collins
v. Virginia. Austin Collins eluded the
police on multiple occasions by driving away at high speeds in an orange Suzuki
motorcycle. Eventually the police discovered the owner of the motorcycle was
Collins, and they traveled to his girlfriend's home, where he stayed a few
nights per week. An officer walked onto the driveway, where a motorcycle was
parked under an opaque white cover with only one of the wheels showing. The
officer lifted the cover to check the license plate, and he confirmed the
motorcycle belonged to Collins.

The Fourth Amendment generally requires police to have a
warrant to conduct a search, but there are several exceptions to this rule.
The "automobile
exception" permits the police to search a vehicle
without a warrant if the vehicle is "readily mobile" and the police
have probable
cause [background] to believe that the automobile contains criminal
evidence. The Court must determine whether the automobile exception authorizes
an uninvited police officer to enter private property and conduct a warrantless
search of a vehicle parked on the driveway near a home.

Collins argues that the motorcycle was in the "curtilage" of the home, which is given the same protection against
warrantless searches as the home, and that while people may not have as much of
a right to privacy while driving, the lack of privacy does not extend to the
driveway and into a person's home. The state countered this argument by stating
that "not only has the Supreme Court 'never limited the application of the
automobile exception to particular locations,'" but also that the Court
"recognized that the automobile exception applies inside the
curtilage" in 1938. The trial court and Virginia's highest court both
found the officer's actions to be proper.

Wednesday, January 10, 2018

Gov. Andrew M. Cuomo plans to ask the New York State
Legislature to eliminate cash bail for many crimes and to speed up the
disclosure of evidence in trials as part of a package of proposals intended
make the criminal justice system fairer for indigent defendants, reported the New York Times.

The governor plans to outline the proposals in
his State of the State address, as lawmakers convene in Albany and prepare to
take up a legislative agenda that is expected to focus not only on criminal
justice but also on the environment and education as well.

In addition to revamping the bail and evidence laws, the
package of criminal justice bills would aim to reduce delays during trials, ban
asset seizures in cases where there has been no conviction and make it easier
for former convicts to get a job after leaving prison.

Governor Cuomo, a Democrat with presidential aspirations, is
promoting the bills as “the most progressive set of reforms in the nation,” his
aides said. “For far too long, our antiquated criminal justice system has
created a two-tier system where outcomes depend purely on economic status —
undermining the bedrock principle that one is innocent until proven guilty,”
Mr. Cuomo said in statement outlining the proposals.

Political momentum to abolish or limit the use of monetary
bail has been building across the country in recent years, as critics have
pointed out it discriminates against people who cannot pay. In New
Jersey, a
law went into effect last year that has nearly eliminated cash bail by
mandating that state judges release most defendants unless they are a proven
flight risk or threat to public safety.

The governor’s proposals are likely to meet opposition from
police unions, the bail bond industry, district attorneys and Republican
lawmakers who control the Senate. The fate of the bills is far from clear in
the legislative session and may depend on what incentives Mr. Cuomo can offer
to the Republican opponents.

Taken together, the proposed bills address several aspects
of the criminal justice system critics have long decried as unfair to the poor,
chief among them the state’s cash bail system and its restrictive discovery
law, which allows prosecutors to withhold important evidence against a
defendant until the eve of trial.

These laws give a tremendous advantage to the police and
prosecutors and, in effect, discriminate against defendants with few resources,
who disproportionately are black or Hispanic, defense lawyers say. Impoverished
people are often unable to pay the bail set by judges in their cases and spend
months or years in jail, unable to help with their defenses, and without
knowing the strength of the case against them, defense lawyers say. Many accept
plea bargains just to end the ordeal.

The measure that Governor Cuomo is proposing would eliminate
cash bail for people facing misdemeanor and nonviolent felonies. Instead
defendants would be released, either on their own promise to return to court,
or with some other conditions imposed by the judge.

Judges could still impose bail for serious violent crimes,
like felony assault or rape, but only after reviewing a defendant’s finances.

At the same time, a second bill would loosen the state’s
restrictive laws regarding when and how prosecutors must turn over their
evidence to the defense, known as “discovery.”

Currently prosecutors can withhold some key evidence until
the eve of trial, including the criminal histories of the state’s witnesses and
the statements they have made to the grand jury and to law enforcement. The
defense also must disclose the evidence it plans to present before trial,
though in most criminal trials, most of the evidence is presented by the
prosecution.

The governor’s proposal would compel the prosecution and the
defense to share information earlier in the process, including the identity and
background of witnesses. It would set deadlines for the state to turn over police
reports and other evidence, in stages, within three months of the day a person
is arraigned on charges, Mr. Cuomo’s aides said.

This provision will most likely face resistance from
prosecutors, who have long argued witnesses to violent crimes are put in danger
if their identities are turned over too quickly to the defense.

Mr. Cuomo also plans to introduce a bill aimed at another
stubborn problem in the justice system: constant delays in bringing a person to
trial that often make a mockery of the speedy trial provisions in state law and
the United States Constitution.

Those delays often happen when prosecutors and defense
lawyers fail to get ready for trial on time and agree to postpone the case and
suspend speedy trial requirements.

That problem was brought into sharp focus by the case of
Kalief Browder, a teenager who spent three years jailed on Rikers Island
awaiting trial on a robbery charge. His case was delayed repeatedly, until the
charges were finally dropped after prosecutors could not locate the
accuser. Mr. Browdercommitted suicide after his release.

A similar effort to overhaul the bail law died in the
Legislature in 2013, despite the support of the state’s chief judge, Jonathan
Lippman. That bill would have let judges consider public safety when making
decisions about bail. It drew criticism not only from Senate Republicans, who
worried about appearing soft on crime, but also from Democrats who thought it
would give judges too much leeway to jail people on the subjective ground that
they were “dangerous.”

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.